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Sauvé v. Canada (Chief Electoral Officer), 2002. Case 34. Background. The right to vote lies at the heart of Canadian democracy. S. 3 of the Charter gives every Canada the right to vote.
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Background • The right to vote lies at the heart of Canadian democracy. • S. 3 of the Charter gives every Canada the right to vote. • However, s. 1 allows “reasonable limits” on this right as “can be demonstrably justified in a free and democratic society”. • Variety of disqualifications have existed in the past, and since have been abandoned. • The case was originally brought forth in Sauvé (1993), where Sauvé argued that blanket disqualification disenfranchised prisoners on election day (of the right to vote). • The law was altered to disqualify only prisoners serving more than two year sentences. • The judges unanimously agree that conclusive scientific proof is not required to establish such a rational connection between means and ends; the logic and common sense of “reasonable person” will do. • Sauvé (2002), narrowly, found that the tradition of disqualification of inmates from voting could not be maintained.
Summary Sauvé (2002) • Justice McLachlin: • “Charterrights are not a matter of privilege or merit, but a function of membership in Canadian polity.” • Doubted that the prisoner disqualification met the “pressing and substantial purpose”. • But did not decide the case on this principle due to the precedent set in Sauvé (1993). • Instead the case was argued upon the “proportionality test” • Government must show that the means chosen to effect this limit are “reasonable and demonstrably justified”. • Government failed to demonstrate proportionality - denying the vote to the penitentiary inmates and its stated goals • She argued that the blanket disqualification did not meet the rational-connection component of proportionality test. • Two year threshold is deemed inappropriate. She argued that no disqualification can be deemed constitutional. • She followed by stating that a “reasonable person” could imagine no disqualification that achieves any compelling purpose.
Summary Sauvé (2002) • Justice Gonthier: • Argued that if the blanket disqualification in Sauvé (1993) failed “the minimal impairment component” of the Oakes test , the government is tasked to define the terms. • Promotion of “dialogue” between legislature and the courts. • Qualifying the length of incarceration needed for the disqualification. • The government’s two-year threshold met the “minimal impairment” standard. • Social contract theory used as an important justification for disqualification. • Government claimed that depriving prisoners of this right was a useful teaching tool.
Constitutional Principles • Section 3 • Right to vote for all Canadians • Right to vote is fundamental to democracy and the rule of law • Section 1 • Reasonable limits clause and limitations clause • Legally allows the government to limit an individuals’ Charter rights • Section 12 • Protects prisoners from “cruel and unusual treatment or punishment” • Section 51 (e) • Legitimate punishment does not meet the dual requirements that punishment must not be arbitrary and must serve a valid criminal law purpose. • Section 33 • Pertains to the “notwithstanding clause” authorizing legislature to override certain portions of the Charter • Unlike other rights, the right of every citizen to vote cannot be suspended under the “notwithstanding clause” • Failed to meet “proportionality test” • Rational-connection • Section 15 • “equality-rights” • Not used in arguments, per se
Conclusion • Sauvé (2002), narrowly, found that the tradition of disqualification of inmates from voting could not be maintained. • Strong argument proposed by Justice McLachlin that any disqualification is to be found unconstitutional. • Government could not provide rational argument for the two year threshold imposed. • Interesting argument presented drawing parallel between the role of penalty and disenfranchisement. • Did not argue on the premise of equality; however, could have been incorporated.
Questions “Charter rights are not a matter of privilege or merit, but a function of membership in Canadian polity.” • What role those the legislation have to play when social and political policies are competing? How does the legislature and the courts maintain “dialogue”? • What role those over-representation of certain subgroups of the population, including Aboriginals, play in the democratic process if disqualification were to be maintained? “Punishment must also fulfill a legitimate penal purpose, including deterrence, rehabilitation, retribution and denunciation (…).” • What role do you see disenfranchisement play in rehabilitation of inmates, if any?
